Lord Clinton-Davis: My Lords, I am not entirely sure about the issue, although the noble Lords who have spoken have been very persuasive. My noble friend the Minister should spell out what the court has to consider when considering the issue of misconduct. I do not know whether it should be included in statute, but a strong case has been made out, and I should like to think about it.

Baroness Scotland of Asthal: My Lords, I pray in aid many of the comments that I made as regards Amendment No. 21, especially the reliance that will be placed on the Attorney-General's document, which will give a great deal of guidance about what will fall within and without appropriate professional conduct.

I must clarify a comment that I made in relation to costs. I hope that I said that, in relation to the amount of costs that could be awarded, the court could not order an individual to pay more than those costs. Therefore, the payment would be of the costs thrown away and the proportion that the court believed had been contributed by the conduct, which would not in any event be disproportionate in its nature.

For similar reasons to those given under the previous amendment, I cannot accept that Amendment No. 22 gives us a significant improvement. It introduces two new tests to be satisfied before an order can be made. The first test is that there must be "substantial prejudice", frustrating or rendering impracticable the administration of justice. That would impose an unduly high hurdle that would exclude many circumstances in which an order might be appropriate. The words "frustrated or rendered impracticable" seem to point solely to cases that have to be abandoned and could exclude misconduct that causes some delay or otherwise puts the parties to extra cost.

The second test is that proceedings were "significantly delayed or abandoned". To an extent, that is unnecessary. An order can be made only when costs are wasted or incurred unnecessarily, which will usually be as a result of delay or abandonment. It is right to emphasise that. However, there might also be

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cases when the third party had lied or withheld information, for example, when the parties are put to significant extra cost examining a red herring.

As for the word "significantly", I accept that cost orders should not be made in respect of trivial delays. However, I am confident that that can be left to the court. The need to adjourn so that the third party can make representations will serve to remind the court that an order for costs of an odd half-hour delay may not be worth the candle. If one is going to expend half a day litigating over the loss of half an hour, the courts may be minded to suggest that it is not an appropriate expenditure of time. However, the court, which will be seized with the whole conduct of the case, will be given an opportunity to determine whether the conduct was serious, whether it has caused delay thereby causing cost and, if it has, to what extent the individual should be made to pay for those costs thrown away.

We believe that there are sufficient safeguards. I understand the concerns expressed by noble Lords, and I agree entirely that it is right that they should have been ventilated so that we could have on record the basis on which the Government would believe that the discretion should be exercised. That will be strengthened in due course by the Attorney-General issuing the consultation guidance, which will I am sure greatly assist all those who come to interpret the clause. I hope that with that full explanation, noble Lords are more content than they were.

Viscount Bledisloe: My Lords, will the Minister tell us a bit more about the guidance from the Attorney-General? She has persuaded the HouseI am sure rightlythat the words should be left as "serious misconduct", which is fairly vague. However, if the Attorney-General issues guidance as to what editors should and should not do, will that not enable him to write what is in effect a statutory definition of serious misconduct? When the Attorney-General has laid down what is and is not serious misconduct, one can hardly imagine a magistrates' court or even a Crown court saying, "Oh yes, that is what the guidance says, but that is not serious misconduct". Is it really right that someone outside Parliament should define what is to be the conduct that gives rise to the unfortunate consequence for the third party?

Baroness Scotland of Asthal: My Lords, the reason why I say that the guidance should be helpful is that the Attorney-General will set it out only after he has been able to explore fully, through consultation, what the industry, the profession, the journalists and editors feel is appropriate. It is right that the profession has indicated that it would wish to have some indication as to what fell within and without. We hope that the provision is a very good response to that request.

Journalists engaged in court reporting need have nothing to fear from that. They are obliged to respect reporting restrictions that may be in place, their own professional code of conduct and, of course, the law of contempt as it affects prejudicial publicity. Journalists are well aware of those things, and it is in order to assist

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further that my noble and learned friend the Attorney-General will issue the consultation guidance. We do not believe that it will have a negative impactwe believe that it will be helpful. At the end of the day, courts will still have to take into account what has happened, how it happened, and whether they believe the matter falls within or without serious misconduct.

If there is further and other information that I can give about the consultation, I am happy to offer to write to noble Lords about the issue.

Lord Hunt of Wirral: My Lords, I am grateful to the noble Lord, Lord Goodhart, for his support because we are dealing here with a major new power. I believe that the noble Viscount, Lord Bledisloe, has put his finger on an important aspectthat somewhere in the legislation there should be some preconditions for that power to be exercised. Although the Minister has rightly said that the Attorney-General will be giving guidance, I believe that this House should give him some guidance on the circumstances in which that new power could be exercisedparticularly as it has caused such concern amongst those who have to report court proceedings. In those circumstances I wish to test the opinion of the House.